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S. 3132 (is) To expand the boundary of the George Washington Birthplace National Monument, and for other purposes. [Introduced in Senate] ...


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106th CONGRESS
  2d Session
                                S. 3131

  To amend title XVIII of the Social Security Act to ensure that the 
Secretary of Health and Human Services provides appropriate guidance to 
   physicians and other health care providers that are attempting to 
 properly submit claims under the Medicare Program and to ensure that 
  the Secretary targets truly fraudulent activity for enforcement of 
 Medicare billing regulations, rather than inadvertent billing errors.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

           September 28 (legislative day, September 22), 2000

 Mr. Murkowski (for himself and Mr. Abraham) introduced the following 
  bill; which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
  To amend title XVIII of the Social Security Act to ensure that the 
Secretary of Health and Human Services provides appropriate guidance to 
   physicians and other health care providers that are attempting to 
 properly submit claims under the Medicare Program and to ensure that 
  the Secretary targets truly fraudulent activity for enforcement of 
 Medicare billing regulations, rather than inadvertant billing errors.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Medicare Billing 
and Education Act of 2000''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Definitions.
                       TITLE I--REGULATORY REFORM

Sec. 101. Prospective application of certain regulations.
Sec. 102. Requirements for judicial and regulatory challenges of 
                            regulations.
Sec. 103. Prohibition of recovering past overpayments by certain means.
Sec. 104. Prohibition of recovering past overpayments if appeal 
                            pending.
                   TITLE II--APPEALS PROCESS REFORMS

Sec. 201. Reform of post-payment audit process.
Sec. 202. Definitions relating to protections for physicians, 
                            suppliers, and providers of services.
Sec. 203. Right to appeal on behalf of deceased beneficiaries.
                    TITLE III--EDUCATION COMPONENTS

Sec. 301. Designated funding levels for provider education.
Sec. 302. Advisory opinions.
               TITLE IV--SUSTAINABLE GROWTH RATE REFORMS

Sec. 401. Inclusion of regulatory costs in the calculation of the 
                            sustainable growth rate.
                      TITLE V--STUDIES AND REPORTS

Sec. 501. GAO audit and report on compliance with certain statutory 
                            administrative procedure requirements.
Sec. 502. GAO study and report on provider participation.
Sec. 503. GAO audit of random sample audits.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Physicians, providers of services, and suppliers of 
        medical equipment and supplies that participate in the Medicare 
        Program under title XVIII of the Social Security Act must 
        contend with over 100,000 pages of complex Medicare 
        regulations, most of which are unknowable to the average health 
        care provider.
            (2) Many physicians are choosing to discontinue 
        participation in the Medicare Program to avoid becoming the 
        target of an overzealous Government investigation regarding 
        compliance with the extensive regulations governing the 
        submission and payment of Medicare claims.
            (3) Health Care Financing Administration contractors send 
        post-payment review letters to physicians that require the 
        physician to submit to additional substantial Government 
        interference with the practice of the physician in order to 
        preserve the physician's right to due process.
            (4) When a Health Care Financing Administration contractor 
        sends a post-payment review letter to a physician, that 
        contractor often has no telephone or face-to-face communication 
        with the physician, provider of services, or supplier.
            (5) The Health Care Financing Administration targets 
        billing errors as though health care providers have committed 
        fraudulent acts, but has not adequately educated physicians, 
        providers of services, and suppliers regarding Medicare billing 
        requirements.
            (6) The Office of the Inspector General of the Department 
        of Health and Human Services found that 75 percent of surveyed 
        physicians had never received any educational materials from a 
        Health Care Financing Administration contractor concerning the 
        equipment and supply ordering process.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Applicable authority.--The term ``applicable 
        authority'' has the meaning given such term in section 
        1861(uu)(1) of the Social Security Act (as added by section 
        202).
            (2) Carrier.--The term ``carrier'' means a carrier (as 
        defined in section 1842(f) of the Social Security Act (42 
        U.S.C. 1395u(f))) with a contract under title XVIII of such Act 
        to administer benefits under part B of such title.
            (3) Extrapolation.--The term ``extrapolation'' has the 
        meaning given such term in section 1861(uu)(2) of the Social 
        Security Act (as added by section 202).
            (4) Fiscal intermediary.--The term ``fiscal intermediary'' 
        means a fiscal intermediary (as defined in section 1816(a) of 
        the Social Security Act (42 U.S.C. 1395h(a))) with an agreement 
        under section 1816 of such Act to administer benefits under 
        part A or B of such title.
            (5) Health care provider.--The term ``health care 
        provider'' has the meaning given the term ``eligible provider'' 
        in section 1897(a)(2) of the Social Security Act (as added by 
        section 301).
            (6) Medicare program.--The term ``Medicare Program'' means 
        the health benefits program under title XVIII of the Social 
        Security Act (42 U.S.C. 1395 et seq.).
            (7) Prepayment review.--The term ``prepayment review'' has 
        the meaning given such term in section 1861(uu)(3) of the 
        Social Security Act (as added by section 202).
            (8) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.

                       TITLE I--REGULATORY REFORM

SEC. 101. PROSPECTIVE APPLICATION OF CERTAIN REGULATIONS.

    Section 1871(a) of the Social Security Act (42 U.S.C. 1395hh(a)) is 
amended by adding at the end the following new paragraph:
            ``(3) Any regulation described under paragraph (2) may not 
        take effect earlier than the date on which such regulation 
        becomes a final regulation. Any regulation described under such 
        paragraph that applies to an agency action, including any 
        agency determination, shall only apply as that regulation is in 
        effect at the time that agency action is taken.''.

SEC. 102. REQUIREMENTS FOR JUDICIAL AND REGULATORY CHALLENGES OF 
              REGULATIONS.

    (a) Right To Challenge Constitutionality and Statutory Authority of 
HCFA Regulations.--Section 1872 of the Social Security Act (42 U.S.C. 
1395ii) is amended to read as follows:

            ``application of certain provisions of title ii

    ``Sec. 1872. The provisions of sections 206 and 216(j), and of 
subsections (a), (d), (e), (h), (i), (j), (k), and (l) of section 205, 
shall also apply with respect to this title to the same extent as they 
are applicable with respect to title II, except that--
            ``(1) in applying such provisions with respect to this 
        title, any reference therein to the Commissioner of Social 
        Security or the Social Security Administration shall be 
        considered a reference to the Secretary or the Department of 
        Health and Human Services, respectively; and
            ``(2) section 205(h) shall not apply with respect to any 
        action brought against the Secretary under section 1331 or 1346 
        of title 28, United States Code, regardless of whether such 
        action is unrelated to a specific determination of the 
        Secretary, that challenges--
                    ``(A) the constitutionality of substantive or 
                interpretive rules of general applicability issued by 
                the Secretary;
                    ``(B) the Secretary's statutory authority to 
                promulgate such substantive or interpretive rules of 
                general applicability; or
                    ``(C) a finding of good cause under subparagraph 
                (B) of the sentence following section 553(b)(3) of 
                title 5, United States Code, if used in the 
                promulgation of substantive or interpretive rules of 
                general applicability issued by the Secretary.''.
    (b) Construction of Hearing Rights Relating to Determinations by 
the Secretary Regarding Agreements With Providers of Services.--Section 
1866(h) of the Social Security Act (42 U.S.C. 1395cc(h)) is amended by 
adding at the end the following new paragraph:
    ``(3) For purposes of applying paragraph (1), an institution or 
agency dissatisfied with a determination by the Secretary described in 
such paragraph shall be entitled to a hearing thereon regardless of 
whether--
            ``(A) such determination has been made by the Secretary or 
        by a State pursuant to an agreement entered into with the 
        Secretary under section 1864; or
            ``(B) the Secretary has imposed or may impose a remedy, 
        penalty, or other sanction on the institution or agency in 
        connection with such determination.''.

SEC. 103. PROHIBITION OF RECOVERING PAST OVERPAYMENTS BY CERTAIN MEANS.

    (a) In General.--Except as provided in subsection (b) and 
notwithstanding sections 1815(a), 1842(b), and 1861(v)(1)(A)(ii) of the 
Social Security Act (42 U.S.C. 1395g(a), 1395u(a), and 
1395x(v)(1)(A)(ii)), or any other provision of law, for purposes of 
applying sections 1842(b)(3)(B)(ii), 1866(a)(1)(B)(ii), 1870, and 1893 
of such Act (42 U.S.C. 1395u(b)(3)(B)(ii), 1395cc(a)(1)(B)(ii), 1395gg, 
and 1395ddd), the Secretary may not offset any future payment to a 
health care provider to recoup a previously made overpayment, but 
instead shall establish a repayment plan to recoup such an overpayment.
    (b) Exception.--This section shall not apply to cases in which the 
Secretary finds evidence of fraud or similar fault on the part of such 
provider.

SEC. 104. PROHIBITION OF RECOVERING PAST OVERPAYMENTS IF APPEAL 
              PENDING.

    (a) Notwithstanding any provision of law, for purposes of applying 
sections 1842(b)(3)(B)(ii), 1866(a)(1)(B)(ii), 1870, and 1893 of the 
Social Security Act (42 U.S.C. 1395u(b)(3)(B)(ii), 1395cc(a)(1)(B)(ii), 
1395gg, and 1395ddd), the Secretary may not take any action (or 
authorize any other person, including any fiscal intermediary, carrier, 
and contractor under section 1893 of such Act (42 U.S.C. 1395ddd)) to 
recoup an overpayment during the period in which a health care provider 
is appealing a determination that such an overpayment has been made or 
the amount of the overpayment.
    (b) Exception.--This section shall not apply to cases in which the 
Secretary finds evidence of fraud or similar fault on the part of such 
provider.

                   TITLE II--APPEALS PROCESS REFORMS

SEC. 201. REFORM OF POST-PAYMENT AUDIT PROCESS.

    (a) Communications to Physicians.--Section 1842 of the Social 
Security Act (42 U.S.C. 1395u) is amended by adding at the end the 
following new subsection:
    ``(u)(1)(A) Except as provided in paragraph (2), in carrying out 
its contract under subsection (b)(3), with respect to physicians' 
services, the carrier shall provide for the recoupment of overpayments 
in the manner described in the succeeding subparagraphs if--
            ``(i) the carrier or a contractor under section 1893 has 
        not requested any relevant record or file; and
            ``(ii) the case has not been referred to the Department of 
        Justice or the Office of Inspector General.
    ``(B)(i) During the 1-year period beginning on the date on which a 
physician receives an overpayment, the physician may return the 
overpayment to the carrier making such overpayment without any penalty.
    ``(ii) If a physician returns an overpayment under clause (i), 
neither the carrier nor the contractor under section 1893 may begin an 
investigation or target such physician based on any claim associated 
with the amount the physician has repaid.
    ``(C) The carrier or a contractor under section 1893 may not recoup 
or offset payment amounts based on extrapolation (as defined in section 
1861(uu)(2)) if the physician has not been the subject of a post-
payment audit.
    ``(D) As part of any written consent settlement communication, the 
carrier or a contractor under section 1893 shall clearly state that the 
physician may submit additional information (including evidence other 
than medical records) to dispute the overpayment amount without waiving 
any administrative remedy or right to appeal the amount of the 
overpayment.
    ``(E) As part of the administrative appeals process for any amount 
in controversy, a physician may directly appeal any adverse 
determination of the carrier or a contractor under section 1893 to an 
administrative law judge.
    ``(F)(i) Each consent settlement communication from the carrier or 
a contractor under section 1893 shall clearly state that prepayment 
review (as defined in section 1861(uu)(3)) may be imposed where the 
physician submits an actual or projected repayment to the carrier or a 
contractor under section 1893. Any prepayment review shall cease if the 
physician demonstrates to the carrier that the physician has properly 
submitted clean claims (as defined in section 1816(c)(2)(B)(i)).
    ``(ii) Prepayment review may not be applied as a result of an 
action under section 201(a), 301(b), or 302.
    ``(2) If a carrier or a contractor under section 1893 identifies 
(before or during post-payment review activities) that a physician has 
submitted a claim with a coding, documentation, or billing 
inconsistency, before sending any written communication to such 
physician, the carrier or a contractor under section 1893 shall contact 
the physician by telephone or in person at the physician's place of 
business during regular business hours and shall--
            ``(i) identify the billing anomaly;
            ``(ii) inform the physician of how to address the anomaly; 
        and
            ``(iii) describe the type of coding or documentation that 
        is required for the claim.''.

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